Gunther v. Board of Zoning Appeals

Subdivision 1 of 1033 of the ordinance provides that the board of zoning appeals may permit the extension of a commercial or industrial establishment "in any district." There is no ambiguity in these words. They express clearly and precisely the intent of those who adopted the ordinance. To construe the provision as applying only to zones where the ordinance permits such uses and not to nonconforming uses can be justified only if, considering the ordinance as a whole, sound reason for doing so definitely appears in its other provisions, or the result of giving the words quoted their ordinary meaning would be attended by consequences so absurd or unreasonable that it must be assumed the legislative body could not have intended them. State v. Nelson,126 Conn. 412, 417, 11 A.2d 856

The majority opinion finds only one ground in other provisions of the ordinance for restricting the language of subdivision 1 to conforming uses. To include nonconforming uses, it says, would be to make the provisions of subdivision 2 superfluous and of no effect. The fallacy of that reasoning is easily demonstrated. Subdivision 1, as applied to such uses, would authorize the board to permit the extension of an existing use but not the addition of a new nonconforming use; but subdivision 2 would authorize the board to permit such a new use under the limitation that it is necessary to adapt the plant to different or improved processes of manufacture or production. The two sections serve different purposes and are parts of a single scheme. Instead of subdivision 2 being superfluous if subdivision 1 is applied to a nonconforming use, it is clearly supplementary to it.

For the rest, the majority opinion, in support of its conclusion, points only to certain general considerations with respect to proper zoning. But they afford no ground to limit a clear and unambiguous provision of a properly adopted zoning ordinance. It is not for us to substitute for a clearly expressed legislative intent our ideas of what would be a wiser provision; Connelly v. Bridgeport, 104 Conn. 238, 249,132 A. 690; nor is it the function of the court to attempt to improve a legislative enactment by reading into it provisions which do not find expression in its words. Lenox Realty Co. v. Hackett, 122 Conn. 143, 150,187 A. 895.

On the other hand, if subdivision 1 does not apply to nonconforming uses, it would serve little, if any, purpose. When a commercial or industrial use is permitted in any zone, an extension of it is equally permissible and there is no need for any permission from the board. The majority opinion seeks to find some function which subdivision 1 might serve when applied to conforming uses, and it holds that it might permit a deviation from the provisions of the ordinance as to open spaces about a building. If that were its only purpose, it is indeed strange that such broad language should have been used. Moreover, the particular provision of the ordinance (1029) to which the majority opinion refers is one which provides: "No lot area shall be so reduced that the dimensions of any of the yards or open spaces shall be smaller than herein prescribed"; that provision is directed to the reduction of "lot areas" and has no reference to preservation of the prescribed open spaces in a lot the dimensions of which remain unchanged.

The provisions of subdivisions 1 and 2 clearly indicate a purpose not to hamper the growth of commercial and industrial uses in the city if the board deems it wise, subject to definite limitations as regards additional nonconforming uses, to permit the extensions of such uses. It certainly cannot be said that to construe the ordinance to accomplish such a purpose is to bring about absurd or unreasonable consequences. On the other hand, so forced a reading of the ordinance as that expressed in the majority opinion clearly invades the province of the authorities of the city who are intrusted with the duty of determining what method of zoning will best serve its welfare.

In this opinion JENNINGS, J., concurred.